state of rhode island and providence plantations ...5 mr. pimentel‘s resume was introduced as...
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1
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
WASHINGTON, SC. SUPERIOR COURT
(FILED: JULY 7, 2011)
MARY ANN O’HALLORAN and :
GERARD O’HALLORAN :
:
V. : W. C. No. 09-470
:
GARDNERS WHARF HOLDING, LLC, :
d/b/a GARDNER’S WHARF HOLDING :
COMPANY and ZONING BOARD OF :
REVIEW OF THE TOWN OF NORTH :
KINGSTOWN by and through its members, :
Vincent E. Brunelli, Linsey Cameron, Stephen J. :
Craven, Andino Merola, Jr., Gregg D. O’Neill, :
John V. Gibbons, Jr., Daniel Pirhala, Jr., and :
Ruth A. Zaccaria :
DECISION
LANPHEAR, J. In this zoning appeal, Mary Ann and Gerard O‘Halloran
(―O‘Hallorans‖ or ―Appellants‖) challenge the unanimous Decision of the Zoning Board
of Review for the Town of North Kingstown (―Decision‖ or ―Board‘s Decision‖)
granting Gardner‘s Wharf Holding, LLC‘s (―Gardner‘s‖ or ―Appellee‘s‖) application for
a special use permit and relief from several conditions imposed upon the property by a
May 1996 Decision of the Zoning Board. Appellants specifically allege that the Board‘s
decision to remove those conditions was contrary to the doctrine of administrative
finality, failed to make the necessary findings of fact, and ignored the uncontradicted
evidence in the record.
For the reasons set forth in this Decision, this Court affirms the Decision of the
2
Board. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
I. FACTS AND TRAVEL
The subject property, Lot 258 on Assessor‘s Plat 117, (―the property‖) is located
at 170 Main Street in North Kingstown, Rhode Island. It is situated within the Wickford
Historic District and is zoned Waterfront Business. (June 9, 2009 North Kingstown
Zoning Board of Review Decision (the ―2009 Decision.‖)) In May of 1996, the North
Kingstown Zoning Board of Review (―Board‖ or ―Zoning Board‖) granted a special use
permit and dimensional variances1 to Gardner‘s predecessor in interest, allowing it to
operate a retail fish market at the property. (May 14, 1996 North Kingstown Zoning
Board of Review Decision (the ―1996 Decision.‖)) In granting this relief, the Board
imposed upon the property thirty-three (33) enumerated conditions, contained within the
1996 Decision. Id. Many of these conditions were excerpted from a ―Consent
Agreement‖ entered into between Gardner‘s predecessor and the Rhode Island
Department of Environmental Management (RIDEM).2 (RIDEM Consent Agreement,
December 15, 1995, In Re: Warwick Cove Holding Company, ISDS Application No.
9323-1350).
1 North Kingstown Zoning Ordinance § 21-15(b) permits the issuance of a special use
permit in conjunction with a dimensional variance. 2 The purpose of the 1995 Consent Agreement was to allow Gardner‘s predecessor to
install an ISDS on the property. The conditions within that agreement were arrived at
through discussions and negotiations between the applicant, RIDEM, and the town
residents. Many of the residents, including the Appellants, take particular issue with the
Board‘s 2009 Decision because it granted relief from conditions of an agreement that the
residents actively participated in crafting. See April 28, 2009 Tr. North Kingstown
Zoning Board Hearing at 74-75. Although the residents assisted negotiating some of the
conditions of the agreement, neither the Town, nor any of the residents, were parties to or
signatories of the Agreement. The Agreement was entered into solely between RIDEM
and Gardner‘s predecessor in interest.
3
After operating the fish market at the property for approximately seven (7) years,
Gardner‘s predecessor sold its interest in the property to the Appellee in 2003. (May 26,
2009 Tr. North Kingstown Zoning Board Hearing at 61.)3 For the next six (6) years, the
Appellee continued to operate Gardner‘s Wharf as a fish market. In January of 2009,
however, Gardner petitioned the Zoning Board for a special use permit to allow it to sell
hot food as a ―take-out‖ or ―carry-out‖ service. In addition, it requested permission to
install an outdoor freezer and fryolators at the property. (2009 Decision). These
operations, however, were explicitly prohibited by the Board‘s 1996 Decision.
Therefore, in addition to its request for a special use permit, Gardner also petitioned the
Board for relief from the following five (5) conditions of the 1996 Decision:
14. Any stationary or mobile exterior motor or compressor
be prohibited from being operated during the hours of 7:00
p.m. to 8:00 a.m.
15. All permanent compressors or motors be contained
within the building.
18. The operation will not include a sit-down restaurant or
take-out type service.
25. The operation may not have a fryolator-type frier, grill
or any similar cooking device. A single burner stove is
permitted to allow preparation of chowder, stuffies and
seafood salad and to cook unsold fish and shellfish before
spoilage.
26. No food cooked on premises may be served warmed.
(1996 Decision). The Board held properly advertised hearings on April 28, 2009, May
12, 2009, and May 26, 2009, at which it considered evidence and heard testimony on
Gardner‘s petition.
3 North Kingstown Zoning Board hearing transcripts are hereinafter cited according to the
following form: ―hearing date‖ Tr. at ―page‖.
4
A. The Evidence Presented at Hearing
Prior to testimony being presented, the Town Solicitor, James Reilly, issued an
instruction to the Board concerning the doctrine of administrative finality.4 Attorney
Reilly explained that, because the Board was being asked to grant relief from conditions
it previously imposed upon the property, the Board‘s inquiry should focus on what
changes since those conditions were imposed in 1996 ―would warrant‖ or ―justify‖ the
Board‘s removal of those conditions in 2009. (April 28, 2009 Tr. at 12.) In compliance
with this instruction, the Board sought to elicit testimony throughout the hearings
regarding what had changed in relation to these conditions over the last thirteen years.
At the hearings, Gardner presented three expert witnesses. All were accepted by
the Board as experts in their respective fields. (April 28, 2009 Tr. at 31, 56; May 12,
2009 Tr. at 5.) Edward Pimentel, a former principal planner in the Town of North
Kingstown and a Land Use Consultant for Pimentel Consulting Inc., testified as
Gardner‘s planning expert.5 Paul Bannon, the president of RAB Professional Engineers
Inc., specializing in traffic engineering and transportation planning and design, testified
as Gardner‘s traffic expert.6 Jeffrey Hanson, a project manager for the John P. Caito
Corporation and licensed Class 3 ISDS7 designer, testified as Gardner‘s ISDS expert.
8
The Board also heard testimony from Susan Licardi, the Town of North Kingstown‘s
4 Although Mr. Reilly did not explicitly state on the record that he was explaining the
―doctrine of administrative finality,‖ the effect of his remarks was to detail the relevant
inquiry the Board was to make in accordance with the principles of that doctrine. 5 Mr. Pimentel‘s resume was introduced as Petitioner‘s Exhibit 3.
6 Mr. Bannon‘s resume was introduced as Petitioner‘s Exhibit 5.
7 Independent Sewage Disposal System is hereinafter referred to as ―ISDS.‖
8 Mr. Hanson‘s resume was introduced as Petitioner‘s Exhibit 6.
5
Director of Water Supply, who testified concerning the water usage at the property.
(May 26, 2009 Tr. at 3-16.)
In addition, the owner and operator of Gardner‘s Wharf, Peter Chevalier, testified
concerning his operation at the property, the current equipment he employed, and the
nature and technology of the equipment he desired to add. Appellant, Marianne
O‘Halloran, testified on her own behalf, but did not present any expert witnesses to the
Board in support of her position. Numerous members of the community also testified
throughout the hearings, some speaking in favor of the proposal and some speaking
against.
Mr. Pimentel testified that ―the unique, most vital change that has happened since
the initial operation and those conditions of approval‖ was the Town‘s enactment of the
Wickford Village Plan (―WVP‖) in 19989—a plan specifically created to address the
unique nature and needs of Wickford Village proper. Id. at 32-33, 38; Petitioner‘s Ex. 4,
Excerpts from WVP. The WVP was developed based on studies and surveys of
Wickford and its residents. (April 28, 2009 Tr. at 37-38; Petitioner‘s Ex. 4, p.4.) These
surveys indicated that the ―variety of services‖ offered in Wickford Village was what
people who came to the village liked most about it. Id. As a result, it was a goal of the
WVP to create a ―self-sufficient village‖ offering a ―variety of services,‖ that people
would ―be able to obtain . . . within a five-minute walk.‖ Id. Mr. Pimentel explained,
―[people] wanted to be able to live in this community, shop in the community, meet their
needs [in the community].‖ Id. at 38.
In addition to enacting the WVP, Mr. Pimentel acknowledged that Wickford itself
9 Mr. Pimentel also testified that the WVP was recently reaffirmed in 2008, as a part of
the North Kingstown Comprehensive Plan‘s five-year update. (April 28, 2009 Tr. at 33.)
6
had changed since the Board‘s Decision in 1996. Id. at 38. Ryan‘s Market, the Village‘s
grocery store, which Mr. Pimentel described as ―a mainstay in Wickford for many, many
years‖ was gone. Id. at 38, 49. Dave‘s Marketplace replaced Ryan‘s Market; however,
the loss of Ryan‘s Market was significant because ―Dave‘s is outside the Village proper.‖
Id. Mr. Pimentel also noted, ―we never thought that the mom-and-pop pharmacy was
going to go. Rite Aid took it over. This is the reality of what is happening.‖ Id. at 38.
―These are the types of establishments that help to further[] ensure [a village‘s] success.‖
Id. at 49. The exodus of these services from the village proper is what, Mr. Pimentel
stated, ―we were trying to protect [the residents] from.‖ Id. at 38-39. Ensuring the
―economic vitality‖ of the Village was specifically ―incorporated into the WVP,‖ and the
needs of the Village change because, ―[e]conomically, things change.‖ Id. at 38-39, 48-
50; Petitioner‘s Ex. 4, p.1.
Upon cross-examination, Mr. Pimentel admitted that the area surrounding
property, except for the town dock and the marinas at the end of Pleasant Street, was
mainly residential in 1995 and remained so at the time of his testimony in 2009. Id. at
44-45. However, it was his opinion that granting Gardner‘s request would not alter the
general character of the surrounding area or disturb the residential neighborhood:
It‘s conditionally permitted. It‘s, in fact, a permitted use,
albeit the board has the right to impose conditions of
approval to ensure that it‘s in character with the
surrounding neighborhood . . . . We‘re not deviating from
the regulations. This gentleman is entitled to this[,] but
he‘s here because there were conditions imposed then,
because it was a new operation in the community. The
concerns that were expressed by the residents then was that,
what is going to be the ramifications of this business in the
Wickford residential neighborhood? We had our 15-year
test case. . . . [T]here have been no citations, no
disturbances to the neighborhood. We‘re asking to add two
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fryolators. . . . [I]f you approve this today, the operation
from the exterior today will be no different than tomorrow.
Id. at 40-41.
When asked whether the special use permit was ―reasonably necessary to serve
the public convenience and welfare,‖ Mr. Pimentel directed the Board‘s attention to the
goals and objectives that he excerpted from the WVP, which include:
Goal No. 1 – Enhance the historic character and vitality of
Wickford Village [through] [e]ncourag[ing] business to
flourish through speedy permitting of improvements
consistent with this plan [and] [p]reserve[ing] and
maintain[ing] the working waterfront of Wickford Village
to enhance the public‘s enjoyment of the harbor.
Goal No. 4 – Anticipate, prepare for, and manage growth
and change [through] [a]ssur[ing] the desired balance
between residential and commercial activities is maintained
to preserve the quality of life enjoyed by village residents
and to preserve, and to the extent practicable, enhance the
economic vitality of the village as a place of business.
(Petitioner‘s Ex. 4, p.3) (internal quotations omitted). In Mr. Pimentel‘s opinion, ―the
minor change of this operation will help to further balance this residential and business
use, and continue to make it successful.‖ April 28, 2009 at 48-49.
Gardner‘s traffic expert, Paul Bannon, gave detailed testimony on the current
traffic patterns in the area and the expected increase that would occur if Gardner‘s
petition was granted. Id. at 55-59; May 26, 2009 Tr. at 20-35. It was his testimony that
Gardner‘s proposed operation could ―easily be serviced on [the existing] roadways and
driveway[,]‖ would not ―cause any kind of traffic[] harm or problem to the neighborhood
or area[,]‖ that ―[a]dequate and safe access to the property [could] be provided[,]‖ and the
operation would ―not cause undo [sic] congestion.‖ (April 28, 2009 Tr. at 57-58.) These
conclusions were based upon Mr. Bannon‘s review of the existing operations at the
8
property, and independent studies Mr. Bannon conducted at Gardner‘s Warwick store.
Id. at 58-59. He also submitted an engineering report of a study he conducted at the
property over a holiday weekend, detailing specific counts of vehicles observed coming
and going from the property and the surrounding area. (May 26, 2009 Tr. at 20.) The
report was accepted by the Board as Petitioner‘s Exhibit 8. Id. at 35.
On cross-examination, Mr. Bannon admitted that traffic had increased since 1996,
and that the proposed use would further increase the traffic at the site; however, he did
not believe this increase would be problematic. Id. at 61-65. Even taking the ―worst-case
scenario‖ of traffic numbers from the Wickford store,10
Mr. Bannon believed the
―business [could] operate safely and effectively without any undue stress or traffic hazard
to the residents of the Town of North Kingstown.‖ Id. at 33.
Gardner‘s ISDS expert, Mr. Hanson, testified that the ―RUCK‖ style ISDS system
that Gardner uses at the property was installed thirteen (13) years ago, when it ―was an
experimental system that was only approvable through the variance process,‖ but
―[u]nder today‘s regulations, that system is recognized as an approved alternative
technology which is approved as a matter of right without the variance process being
necessary.‖11
(May 12, 2009 Tr. at 11.) Based on his research, Mr. Hanson testified that
the RUCK system could handle the increased use that would occur if the Board approved
Gardner‘s petition. Id. at 10. He submitted a written memorandum of his findings to the
10
Gardner‘s Warwick store offers similar services to what Gardner is proposing to add to
its Wickford store. It was, therefore, used as a comparison. However, because the
Warwick store is located on a much busier thoroughfare than the Wickford store is,
Gardner‘s expert believed that traffic numbers at the Warwick store would represent a
―worst-case scenario‖ of the type of traffic the Wickford store might generate. May 26,
2009 Tr. at 19, 33. 11
It was noted, however, that commercial RUCK systems still require special review.
(May 26, 2009 Tr. at 9.)
9
Board, which was accepted as Petitioner‘s Exhibit 7. Id. at 10.
There was some confusion as to the actual amount of water usage at the property.
Mr. Hanson had been operating under the impression that approximately one hundred
eighty (180) gallons of water drained into the RUCK system each day. Id. at 15.
However, Susan Licardi, the Town‘s director of water supply, explained that the property
had two separate water accounts and two separate drainage systems—the RUCK system
and a leach field. (May 26, 2009 Tr. at 4-5.) According to her review of the records,12
the water account serviced by the RUCK system used an average of three hundred nine
and one-tenth (309.1) gallons per day, and the account serviced by the leach field used an
average of two hundred twenty-five and three one-hundredths (225.03) gallons per day.
Id. at 5-7. However, Mrs. Licardi acknowledged that these totals did not represent the
amount of water entering the treatment systems, but only the amount of water entering
the property, and that some of this water might not enter the treatment systems. Id. at 14-
16.
Specifically addressing this issue, Mr. Hanson testified that based on readings
from a water meter installed on Gardner‘s ice machine over a period of approximately
sixty-two (62) days, an average of one hundred sixty-two (162) gallons per day from the
RUCK account were used to generate ice. Id. at 36-37. After speaking with Gardner‘s
owner, he estimated that around half of this amount, or eighty-one (81) gallons, would be
shipped out with packaged fish, or given to lobstermen, and would not enter the RUCK
system. Based upon these updated figures, Mr. Hanson concluded that the actual water
12
Mrs. Licardi‘s daily averages were arrived at by reviewing the water usage on each of
the property‘s accounts over a period of approximately seven to eight (7-8) years. (May
26, 2009 Tr. at 5, 7.)
10
introduced into the RUCK system was still below the 300 gallons permitted. Id. at 36-37.
He further testified that between eighty (80) and one hundred fifty (150) gallons of water
per day from the leach field account were used by the exterior aquaculture facility.
Taking this water usage into account, the amount of water actually introduced to the
leach field system was also below the one hundred eighty-seven and two-tenths (187.2)
gallons permitted.13
Id. at 37-38. In support of his findings, Mr. Hanson submitted a
design memorandum, which was accepted by the Board as Petitioner‘s Exhibit 9. Id. at
39.
When questioned by Chairman Pirhala about what effect the grease and oil waste
from the fryolators would have on the system, Mr. Hanson testified that grease and oil
waste would not be a concern because it is not introduced into the system. (May 12,
2009 Tr. at 16.) The facility currently has a 1000-gallon grease trap, and an under
counter grease trap would be added on the sink, to trap grease prior to it entering the
system. Id. at 16-17. This grease would be stored in a separate tank that would be
serviced just like a septic tank—pumped out and emptied by a contractor. Therefore, no
additional strain would be put on the system as a result of the additional grease. Id. at 16-
17.
Finally, Mr. Chevalier testified concerning his current operation on the property,
13
Mr. Hanson‘s testimony concerning the water that was used to make ice and service the
exterior aquaculture facility was corroborated by the testimony of several lay witnesses.
A lobsterman who uses ice from Gardner‘s Wharf testified that he takes 150 to 200 lbs of
ice from the facility each day. (May 12, 2009 Tr. at 44.) Peter Chevalier, the owner of
Gardner‘s Wharf, also testified that he uses ―far more than 50 percent [of his ice] outside
the store.‖ (May 26, 2009 Tr. at 67.) Additionally, an oyster farmer who operates the
oyster farm behind Gardner‘s Wharf, testified that he uses a substantial amount of water
from Gardner‘s account to service his oyster farm. He stated, ―I was surprised at how
much water I really use. I didn‘t think I was using that much water . . . . [Y]ou use up a
hundred gallons easily. I do this year-round.‖ (May 26, 2009 Tr. at 56-57.)
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his proposed operation, and the technology and equipment he planned to use if his
petition was approved. When asked whether the high water alarm on the septic system
had ever gone off, Mr. Chevalier replied that it had not. (May 26, 2009 Tr. at 66.) He
also testified that ―[c]ompetition in the area has dramatically changed.‖ Id. at 69. When
Ryan's Market closed and Dave's Market opened, he lost thirty (30) percent of his
customers—people who used to buy meat at Ryans and fish at Gardner‘s Wharf now go
to Dave's for both. Id. He said that people come in for cooked food now, but he has to
turn them away. Id. at 63-64.
When questioned regarding the potential smell from the fryolators, he informed
the Board that he would be using ―what is called a high-blast fan‖ system. (May 26,
2009 Tr. At 65.) This system is mounted to the top of the building and ―forms a jet cone‖
that shoots exhaust an additional ―20 to 30 feet‖ into the atmosphere, exhaust thereafter
―will continue to rise‖ due to the fact that it is heated. Id. This system, he explained, is
―different technology‖ from the side-mounted ventilation systems that some people had
complained about smells from. Id. at 65-66. A ―high-blast system‖ limits the instances
in which the wind will blow smells into the neighborhood. See id. He testified that the
waterfront has a variety of smells, including a low tide smell, and does not believe that
the smell from frying fish could be any worse than the smell of low tide. Id.
With regards to the outdoor compressor on the freezer that he is seeking to install,
he testified that he had spoken with the manufacturer about the noise that the new freezer
would make. Id. at 73. He was ―assured by the manufacturer that we can meet any kind
of ordinances for sound.‖ Id. The new freezer would be located behind an existing
fence, so no alterations to the exterior footprint of the property will be made. Id. at 77-
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78. In addition to placing the freezer behind a fence, Mr. Chevalier testified that he
would be constructing an additional buffer to further mitigate any noise produced by the
freezer. Id.
In order to install the freezer, Mr. Chevalier needs relief from those conditions of
the 1996 Decision that prohibit the operation of an outdoor compressor between the hours
of 7:00 p.m. and 8:00 a.m. because the freezer‘s compressor will need to be able to
switch on and off whenever necessary in order to maintain the interior temperature. Id. at
73-74. However, Mr. Chevalier testified that the freezer will likely run less during the
7:00 p.m. to 8:00 a.m. period because it will not be opened during that time, and will
therefore operate more efficiently. See Id. When asked by the Board whether he‘d tested
these types of freezers with a decibel meter, he replied that he had—―at 20 feet [from the
freezer] it [the noise level] dropped below 45 decibels.‖ Id. at 74. He explained that he
would providing even further buffering of this sound, and the nearest residence to his
establishment was one hundred fifty (150) feet away. Id. at 75-76.
Numerous members of the community, including the Appellant Marianne
O‘Halloran, testified throughout the hearings. They were concerned about the freezer
because of the noise,14
the fryolators because of the smell15
and potential environmental
impact from the grease,16
and the take-out service because of the traffic17
and potential
for an increase in trash.18
Members of the community also testified extensively about
14
April 28, 2009 Tr. at 70-71, 79. 15
April 28, 2009 Tr. at 69; May 12, 2009 Tr. at 54. 16
May 12, 2009 Tr. at 35-36. 17
April 28, 2009 Tr. at 67. 18
May 12, 2009 Tr. at 60; May 26, 2009 Tr. at 60-62.
13
their observations on the nature and character of Wickford Village19
and the change
which had occurred as a result of the economic downturn, primarily the closing of
numerous businesses within the village. (April 28, 2009 Tr. at 92-93; May 12, 2009 Tr.
at 57, 68-72).
B. The Zoning Board’s Decision
At the conclusion of testimony, the Board unanimously voted to approve
Gardner‘s petition. The following oral findings of fact from the May 26, 2009 hearing
indicate that the Board found both, (1) that that material change had occurred within
Wickford, and (2) that, as a result of that change, the removal of the 1996 conditions was
justified:
The significant change in Wickford [of] losing Ryan‘s
market . . . and the storefronts that are closing up, I‘m
hoping that you do bring a little traffic . . . enough to
generate some business into the Town, so we can get it
back to what it was.
(May 26, 2009 Tr. at 103.).
[T]here is a lot of change in the business climate in the
Town. We‘ve been going up and down. At this point
we‘re down. A lot of storefronts are closed up. A lot of
transitional moves by businesses in the Town. I think this
village is always evolving, trying to find its place in today‘s
economy, marketplace, and also keeping in mind the
tourism aspects of it, and also the quaintness of the Town.
I think we‘re still maintaining that with the approval of this
application.
Id. at 105.
Additionally, the Board found that Mr. Chevalier had ―given very good testimony
about the technology involved in [the] compressor for the freezer[, and the] methods to
isolate the compressor.‖ Id. at 94. The Board stated, ―I believe the exterior compressor .
19
April 28, 2009 Tr. at 84; May 12, 2009 Tr. at 42, 51.
14
. . will be of high technology, fully isolated, sound dampening and all that technology we
have today.‖ Id. at 96. With regards to the fryolators, the Board found that the high-blast
exhaust system that Mr. Chevalier testified he would be using at the property was
―today‘s technology,‖ stating, ―I think that technology is very good.‖ Id. at 95. Lastly,
the Board found the testimony of Gardner‘s traffic and ISDS experts to be sufficiently
supported and credible. Id. at 97.
On June 9, 2009, the Board issued its formal written Decision, granting Gardner‘s
request for a special use permit and relief from conditions fourteen (14), fifteen (15),
eighteen (18), twenty-five (25), and twenty-six (26) of the 1996 Decision. (2009
Decision, Decision at 1-10). The 2009 Decision listed 23 findings of fact. Significant
amongst these were that ―Wickford Village is constantly evolving,‖ that ―[t]here has been
a significant negative change in Wickford since Ryan‘s market closed last spring of
2008[,]‖ that ―[o]ther businesses have also closed in Wickford recently[,]‖ and that
―[a]pproving the application would help to generate additional business in Wickford,‖
and ―serve the public convenience and welfare.‖ Id., Findings of Fact at 13, 21, 23. In
addition, the Board found that ―[c]arry-out food is an approved use in Waterfront
Business Zoning districts[,]‖ that ―[t]he business is located on a peninsula, making it an
isolated area[,]‖ and that ―[t]he proposed changes to the business will not alter the
surrounding village.‖ Id. at 3, 10, 11. Finally, the Board found that the freezer and
fryolator would not pose a problem due to the technology associated with those devices.
Id. at 5, 9.
15
II. STANDARD OF REVIEW
Superior Court review of zoning board decisions is governed by G.L. 1956 § 45-
24-69(d). That section provides:
The court shall not substitute its judgment for that of the
zoning board of review as to the weight of the evidence on
questions of fact. The court may affirm the decision of the
zoning board of review or remand the case for further
proceedings, or may reverse or modify the decision if
substantial rights of the appellant have been prejudiced
because of findings, inferences, conclusions, or decisions
which are:
(1) In violation of constitutional, statutory, or ordinance
provisions;
(2) In excess of the authority granted to the zoning board of
review by statute or ordinance;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and
substantial evidence of the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
In reviewing questions of law, this Court conducts de novo review. Tanner v. Town
Council, 880 A.2d 784, 791 (R.I. 2005). In reviewing questions of fact, it is the job of
the trial justice to ―examine the entire record to determine whether ‗substantial‘ evidence
exists to support the board‘s findings.‖ DeStefano v. Zoning Board of Review of
Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979) (superseded by statute, G.L.
1956 § 45-24-41—only as it ―relate[s] to the burden of proof required to authorize the
granting of a dimensional variance‖—in Sciacca v. Caruso, 769 A.2d 578, 583 (R.I.
2001)). This Court ―lacks [the] authority to weigh the evidence, to pass upon the
credibility of witnesses, or to substitute [its] findings of fact for those made at the
administrative level.‖ Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998) (quoting Lett v.
Caromile, 510 A.2d 958, 960 (R.I. 1986)). If this Court ―can conscientiously find that the
16
board‘s decision was supported by substantial evidence on the whole record,‖ it must
uphold that decision. Mill Realty Assoc. v. Crowe, 841 A.2d 668, 672 (R.I. 2004)
(quoting Apostolu v. Genovesi, 120 R.I. 501, 509, 388 A.2d 821, 825 (1978)); see
Monroe v. Town of East Greenwich, 733 A.2d 703 (R.I. 1999). ―Substantial evidence is
relevant evidence that a reasonable person would accept as adequate to support the
board‘s conclusion and amounts to ‗more than a scintilla but less than a preponderance.‖‘
Lischio v. Zoning Board of Review of the Town of North Kingstown, 818 A.2d 685, 690
n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand and Gravel Co., Inc., 424 A.2d
646, 647 (R.I. 1981)).
III. ANALYSIS
A. Administrative Finality
In Rhode Island, the authority of administrative agencies, including zoning
boards, to revisit and alter prior decisions is limited by the doctrine of administrative
finality. Johnston Ambulatory Surgical Associates, LTD. v. Nolan, 755 A.2d 799, 808
(R.I. 2000). Under this doctrine, an administrative agency that denies an application for
relief cannot later grant a subsequent application for the same relief unless the applicant
can demonstrate ―a change in material circumstances during the time between the two
applications.‖ Id. The doctrine is equally applicable in cases where relief is granted
subject to certain conditions—relief from those conditions cannot be granted absent a
finding that there has been a subsequent change in material circumstances. See Audette
v. Coletti, 539 A.2d 520 (R.I. 1988). In Johnston Ambulatory, our Supreme Court stated:
What constitutes a material change will depend on the
context of the particular administrative scheme and the
17
relief sought by the applicant and should be determined
with reference to the statutes, regulations, and case law that
govern the specific field. The changed circumstances could
be internal to the application, as when an applicant seeks
the same relief but makes important changes in the
application to address the concerns expressed in the denial
of its earlier application. Or, external circumstances could
have changed, as when an applicant for a zoning exception
demonstrates that the essential nature of land use in the
immediate vicinity has changed since the previous
application.
Johnston Ambulatory, 755 A.2d at 811. If the administrative decision-maker chooses to
grant a subsequent application for the same relief, it must ―articulate in its decision the
specific materially changed circumstances that warrant reversal of [its] earlier denial of
the relief sought.‖ Id.
This Court‘s review ―is limited to a determination of whether there was sufficient
competent evidence to support the findings made by the administrative agency.‖ Id. at
812 (quoting Barrington School Committee v. Rhode Island State Labor Relations Bd.,
608 A.2d 1126, 1138 (R.I. 1992)). Our Supreme Court stated,
The determination of whether circumstances have
materially or substantially changed sufficiently to warrant
reversal of an earlier decision is a finding that must be
made in the first instance by the administrative decision-
maker and not by this Court.
[I]f the [administrative body] has made a finding of fact
that there ha[s] been a material change in circumstances
and pointed to evidence to support that finding, a trial
justice would likely abuse his or her discretion by
independently reviewing the evidence and rejecting the
[agency‘s] finding.
Id. at 812-813.
In this case, the standards contained within § 21-15(a) of the Town of North
Kingstown Zoning Ordinance, which govern the granting of a special use permit, are
18
relevant to whether there had been a material change in circumstances. Johnston
Ambulatory, 755 A.2d at 811. Those provisions are as follows:
In granting a special use permit or special permit under this
chapter, the zoning board of review shall require that
evidence to the satisfaction of the following standards be
entered into the record of the proceedings:
1. The requested special use permit will not alter the
general character of the surrounding area or impair the
intent or purpose of this chapter or the comprehensive plan
upon which this chapter is based.
2. The special use permit is reasonably necessary to serve
the public convenience and welfare.
3. The granting of a special use permit will not pose a
threat to the drinking water supply.
4. The use will not disrupt the neighborhood or the
privacy of abutting landowners by excessive noise, light,
glare or air pollutants.
5. Sewage and waste disposal into the ground and the
surface water drainage from the proposed use will be
adequately handled on site.
6. The traffic generated by the proposed use will not cause
undue congestion or introduce a traffic hazard to the
circulation pattern of the area.
7. Accessory signs, off-street parking and loading area and
outdoor lighting are designed and located in a manner
which complements the character of the neighborhood.
Ordinance § 21-15(a).
The doctrine of administrative finality creates an additional threshold inquiry that
the Board must make before judging the remaining merits of the petition; it does not
supplant the remaining requirements of the zoning ordinance—the Board must still find
each requirement under the ordinance has been satisfied in order to grant the relief
requested. See Marks v. Zoning Board of Review of the City of Providence, 98 R.I. 405,
406-407, 203 A.2d 761, 763 (1964) (―[A] substantial change in conditions is generally a
condition precedent to the exercise of jurisdiction [by the Zoning Board].‖). On the other
hand, the doctrine does not require that a material change be demonstrated for every
19
single provision of the ordinance. See Gilman v. Zoning Board of Review of the Town
of West Warwick, 103 R.I. 612, 240 A.2d 159 (1968) (recognizing that the Board must
find ―that subsequent to [an initial] denial there has been a material change in the
circumstances on which that denial was predicated.‖) (citing Day v. Zoning Board of
Review, 92 R.I. 136, 167 A.2d 136 (1961) (emphasis added); Churchill v. Zoning Board
of Review, 98 R.I. 302, 201 A.2d 480 (1964); Marks, 98 R.I. 405, 203 A.3d 761; Burke
v. Zoning Board of Review, 103 R.I. 404, 238 A.2d 50 (1968)).
In its 1996 Decision, the Board imposed five conditions that the 2009 Decision
removed. Conditions eighteen (18) and twenty-six (26) were that the ―operation [would]
not include a sit-down restaurant or take-out type service‖ and that ―[n]o food cooked on
the premises [could] be served warmed.‖ (2009 Decision, Decision at 2-3). In support of
granting relief from these conditions, the Board‘s 2009 Decision cited that the village had
suffered a ―significant negative change‖ since the spring of 2008—Ryan‘s Market and
other businesses within the village had recently closed. Id., Findings of Fact at 21.
Allowing this operation to include take-out service of hot food would ―help to generate
additional business in Wickford.‖ Id. This finding—that the economic downturn and
exodus of businesses from the village constitutes a material change in circumstances—is
a proper finding under the standards by which the occurrence of material change is
determined. See Johnston Ambulatory, 755 A.2d at 811.
In Johnston Ambulatory, our Supreme Court instructed that material change
―should be determined with reference to the statutes, regulations, and case law that
govern the specific field.‖ Id. The Town‘s comprehensive plan is within this scheme of
statutes and regulations. See G.L. 1956 §§ 45-22.2-8(c); see also Ordinance § 21-
20
15(a)(1) (requiring the Zoning Board to find ―the requested special use permit will not . .
. impair the intent or purpose of . . . the comprehensive plan . . . .‖). Under the WVP,
which is part of the North Kingstown Comprehensive Plan, it was a specific goal of the
Town to
Anticipate, prepare for, and manage growth and change
[through] ‗[a]ssur[ing] the desired balance between
residential and commercial activities is maintained to
preserve the quality of life enjoyed by village residents and
to preserve, and to the extent practicable, enhance the
economic vitality of the village as a place of business.‘
(Petitioner‘s Ex. 4, p.3.) The Board made findings, both oral and written, that change had
occurred, that significant business interests had left the village, and that granting
Gardner‘s petition would help to maintain the balance of business and residential uses
within the town, and ―get it back to what it was.‖ (May 26, 2009 Tr. at. 103, 2009
Decision, Findings of Fact at 21, 23). These facts and findings are sufficient to support
the Board‘s determination that material change had occurred, thereby entitling the Board
to revisit its prior Decision under the doctrine of administrative finality. See Johnston
Ambulatory, 755 A.2d at 811.
These findings were supported by substantial evidence on the record. See
Caswell, 424 A.2d at 647 (noting substantial evidence is ―more than a scintilla but less
than a preponderance‖). Mr. Pimentel, Gardner‘s planning expert, testified at length
concerning the WVP and the need to maintain a ―self-sufficient village‖ with a balance of
business and residential uses necessary to provide a ―variety of services‖ to the residents
within the village proper. (April 28, 2009 Tr. at 33-39, 41, 48-49, 51). He also provided
the Board with excerpts from the WVP, which were made part of the record as
Petitioner‘s Exhibit 4. Moreover, numerous lay witnesses testified concerning the loss of
21
―mainstay‖ businesses from the village, (May 12, 2009 Tr. at 57, 70), the ―vacant
buildings,‖ id. at 68, the numerous ―for rent signs,‖ (April 28, 2009 Tr. at 92), and the
―empty storefronts.‖ Id. This Court finds that there is substantial evidence on the record
to support the Board‘s finding that there was ―a change in material circumstances during
the time between the two applications,‖ Johnston Ambulatory, 755 A.2d at 808. Finding
there to be no error of law, this Court upholds the Board‘s decision to grant Gardner
relief from conditions eighteen (18) and twenty-six (26) of the 1996 Decision. Mill
Realty Assoc., 841 A.2d at 672.
Conditions fourteen (14) and fifteen (15) of the 1996 Decision were that ―any
stationary or mobile exterior motor or compressor be prohibited from being operated
during the hours of 7:00 pm to 8:00 am,‖ and that ―[a]ll permanent compressors or
motors be contained within the building.‖ The Board made numerous findings, both oral
and written, that there was adequate testimony regarding the technology of the proposed
outdoor freezer and methods of noise abatement to grant relief from these conditions.
(2009 Decision, Findings of Fact at 5; May 26, 2009 Tr. at 93) (―My feeling is the
applicant has given very good testimony about the technology involved in this
compressor for the freezer . . . he has made far and above methods to isolate the
compressor.‖). There were also references made, throughout the hearings and within the
Board‘s oral findings, that the freezer would be ―current technology.‖ Id. at 94.
There was substantial evidence on the record to supports this finding. The Board
heard testimony from Mr. Chevalier concerning the manufacturer‘s assurances that the
technology of this freezer could ―meet any kind of ordinances for sound.‖ Id. at 73. Mr.
Chevalier also testified concerning the noise emitted from other refrigeration units that he
22
uses—stating that ―we put some refrigeration in an enclosed area and you can hear it
when you walk up on it, but you walk away and it‘s not even audible.‖ Id. Board
Member Gibbons asked Mr. Chevalier directly, ―have you had anybody measure that [the
noise emanating from a freezer like the one you propose to install] with a decibel reader
meter?‖ Id. at 74. Mr. Chevalier responded that he had a colleague of his measure a
freezer ―typical to what we want to install‖ and the readings were ―below 45 decibels‖ at
twenty (20) feet away from the unit. Id. at 74-75. Mr. Chevalier then informed that
Board that the nearest residential home to his establishment was one hundred and fifty
(150) feet away. Id. at 76. Finding there to be substantial evidence on the record that any
previous concerns about noise could be addressed by the fact that Mr. Chevalier was
installing a freezer of ―current technology‖ that could ―meet any kind of ordinances for
sound,‖ id. at 73, 94, the Board‘s decision to grant Gardner relief from conditions
fourteen (14) and fifteen (15) was in compliance with the doctrine of administrative
finality. This Court, therefore, upholds that portion of the Board‘s Decision granting
Gardner‘s petition for relief from those conditions.
B. Need for Cooking Devices.
Finally, condition twenty-five (25) of the Board‘s 1996 Decision was that ―[t]he
operation may not have a fryolator-type frier, grill or any similar cooking device.‖ The
Board heard expert testimony from Mr. Hanson on how the grease from the proposed
fryolators would be handled on the property and not emit into the surrounding
environment. (May 12, 2009 Tr. at 16-17.) Additionally, Mr. Hanson informed the
Board that any approval would have to be reviewed for environmental issues with DEM
23
and CRMC, and reviewed for health issues by the Department of Health. Id. at 12-14.
The Board heard expert testimony from Mr. Pimentel on how adding two fryolators
would not impact the surrounding area. (April 28, 2009 Tr. at 45.) Lastly, the Board
heard testimony from Mr. Chevalier on how the ―high-blast exhaust system‖ would
minimize the smell that might be blown towards the nearby residences. (May 26, 2009
Tr. at 65-66.)
As an initial matter, in 1996, the Board had prohibited the property from selling
hot food or offering take-out service. Therefore, a fryolator was not strictly necessary in
conducting the business‘s operation. However, after having found there to be material
changes sufficient to warrant the removal of those conditions and allow the property to
provide take-out service of hot food, the situation concerning the need for a fryolator has
itself been altered in a material way. See Johnston Ambulatory, 755 A.2d at 811 (noting
that a change in circumstances internal to the application, as well as external, can
constitute material change under the doctrine of administrative finality). In addition to
the changes brought about by the Board‘s removal of the above-mentioned conditions,
the Board found that any environmental or odor concerns could now be addressed by the
use of the updated exhaust system and through additional review by other agencies.
(2009 Decision, Findings of Fact at 9, 19.)
The Board made sufficient findings, both oral and written, on these issues.
Orally, the Board found the high-blast exhaust system Mr. Chevalier used to be ―very
good technology,‖ which would prevent ―the exhaust fumes from settling into the Town
and barreling down the street towards residences.‖ (May 26, 2009 Tr. at 95.) In its
subsequent written Decision, the Board found that ―[t]he use of a fry-o-lator with today‘s
24
technology and updated exhaust systems should not pose a problem.‖ (2009 Decision,
Findings of Fact at 9.) Additionally, the Board found that, with regards to the
environmental issues, ―the application must go through RIDEM, CRMC, and the
Department of Health to ensure that the environmental and health standards are met by
the applicant.‖ Id. at 19. Additional review by these agencies was incorporated into the
Board‘s Decision as a condition of Gardner‘s relief. Id., Decision at 10.
These findings were supported by substantial evidence on the record. Gardner‘s
experts, Mr. Pimentel and Mr. Hanson, both testified that detailed environmental review
by RIDEM, CRMC, and the Department of Health would be a prerequisite to installing
the fryolator. (April 28, 2009 Tr. at 28-29; May 12, 2009 Tr. at 13-14.) Mr. Hanson, in
addition, provided specific testimony regarding the grease trap system currently installed
at the property, and the additional systems which Gardner would add if its petition was
approved. (May 12, 2009 Tr. at 16-17.) ―The grease,‖ Mr. Hanson explained, ―would
not be introduced into the [ISDS] system,‖ but would be picked up by an outside
contractor. Id. at 16. Mr. Chevalier provided detailed testimony regarding the ―high-
blast fan‖ system that is installed on the property, its manner of operation, and how it
would limit the potential instances in which smells would be blown towards the
residential area. (May 26, 2009 Tr. at 65-66.)
This Court finds that there was substantial evidence on the record to support the
Board‘s finding that any previous environmental or odor concerns regarding the
installation of a fryolator at the property could be addressed through additional agency
review and the utilization of the ―today‘s . . . updated exhaust system.‖ Therefore,
25
finding there to be no error of law, this Court upholds the Board‘s decision to grant
Gardner‘s petition for relief from condition twenty-five (25) of the 1996 Decision.
3. Application of Law to Changed Circumstances.
Under the doctrine of administrative finality, a prerequisite to the Board‘s
removal of previously imposed conditions is a finding that there has been ―a change in
material circumstances during the time between the two applications.‖ Johnston
Ambulatory, 755 A.2d at 808. This finding must be supported by substantial evidence on
the record. Id. at 812. After referencing the statutes, regulations, and case law in the
field, this Court finds that the Board made sufficient findings that a change in material
circumstances had occurred relevant to each of the five conditions of the 1996 Decision,
and that those findings were supported by substantial evidence on the record. Therefore,
this Court upholds that portion of the Board‘s Decision granting relief from conditions
fourteen (14), fifteen (15), eighteen (18), twenty-five (25), and twenty-six (26) of the
1996 Decision.
4. The Special Use Permit
To survive judicial review, the Board‘s Decision must be also be supported by
findings of fact that meet the applicable criteria for granting a special use permit. May-
Day Realty Co. v. Board of Appeals of the City of Pawtucket, 107 R.I. 235, 239, 267
A.2d 400 (1970). This Court must determine, ―whether the board members resolved the
evidentiary conflicts, made the prerequisite factual determinations, and applied the proper
legal principles.‖ Id. The Board's findings of fact must be supported by substantial
evidence on the record. See Lischio supra.
26
The first requirement for granting a special use permit is that,
The requested special use permit will not alter the general
character of the surrounding area or impair the intent or
purpose of this chapter or the comprehensive plan upon
which this chapter is based.
Ordinance § 21-15(a)(1). As has already been discussed supra, the Board found that
―[t]he business is located on a peninsula, making it an isolated area[,]‖ ―[t]here are no
external changes proposed for the building[,]‖ and ―[t]he proposed changes to the
business will not alter the surrounding village.‖ (2009 Decision, Findings of Fact at 10,
11, 17.) These findings were supported by the only expert testimony offered on this
issue, the testimony of Gardner‘s planning expert, Mr. Pimentel. As has been discussed
in detail above, Mr. Pimentel testified at length concerning the WVP‘s desire to support a
self-sufficient village with a variety of services, and how the ―minor change of this
operation will help to further balance [the] residential and business use.‖ (April 28, 2009
Tr. at 48-49). While Mr. Pimentel did admit that the area surrounding the property,
except for the town dock and the marinas at the end of Pleasant Street, was mainly
residential, it was his opinion that the minor change would not alter the character of the
surrounding area: ―if you approve this today, the operation from the exterior today will be
no different than tomorrow.‖ (April 28, 2009 Tr. at 41.) In addition to Mr. Pimentel‘s
testimony, the Board heard numerous lay witnesses testify concerning the nature of the
surrounding area. While some residents testified that the area was mainly residential,
others testified that it was a ―working village‖ with the sounds of boat engines being
started, and fishermen going to work at 4:00 a.m. Id. at 84-85
It is not the role of this Court to ―weigh the evidence, to pass on the credibility of
witnesses, or to substitute [its] findings of fact for those made at the administrative level‖,
27
Restivo, 707 A.2d 665, but to determine whether the ―board‘s decision was supported by
substantial evidence on the record.‖ Mill Realty, 841 A.2d 672. Based upon Mr.
Pimentel‘s testimony and the excerpts from the WVP, incorporated into the record as
Petitioner‘s Exhibit 4, this Court finds there to be substantial evidence on the record to
support the Board‘s findings that granting this proposal would not ―alter the general
character of the surrounding area or impair the intent or purpose of the [zoning
ordinance] or the comprehensive plan.‖ Ordinance § 21-15(a)(1).
The second requirement for granting a special use permit is that the ―permit is
reasonably necessary to serve the public convenience and welfare.‖ Ordinance § 21-
15(a)(2). In its Decision, the Board specifically found this condition was satisfied. (2009
Decision, Findings of Fact at 13.) Substantial evidence to support this finding is strewn
throughout the record. Mr. Pimental, and several members of the community testified
that the closing of several businesses within the village proper had resulted in a loss of
services. (April 28, 2009 Tr. at 38-39, 49.) This Court therefore finds there to be
substantial evidence on the record to support the Board‘s finding that the special use
permit was ―reasonable necessary to serve the public convenience and welfare.‖
The third and fifth requirements for granting a special use permit are that ―[t]he
granting of a special use permit will not pose a threat to the drinking water supply,‖ and
―[s]ewage and waste disposal into the ground and the surface water drainage from the
proposed use will be adequately handled on site.‖ Ordinance §§ 21-15(a)(3), (5). In its
Decision, the Board found that ―[b]ased upon the testimony of applicants [sic]
engineer[,]‖ these requirements were met. (2009 Decision, Findings of Fact at 14, 20.)
As discussed in detail supra, Gardner‘s ISDS expert, Mr. Hanson, and Susan
28
Licardi, the Town‘s director of water supply, testified concerning water usage and the
ISDS systems at the property. While Mr. Hanson‘s original testimony—that the existing
ISDS system could handle the additional water usage that adding a take-out service
would create—was called into question by the water usage averages testified to by Mrs.
Licardi, Mr. Hanson was able to account for the discrepancy and reaffirm his conclusion
that the current ISDS system would be adequate to handle the additional use. (May 12,
2009 Tr. at 15-16; May 26, 2009 Tr. at 5-7, 36-38.) Mr. Hanson‘s testimony, concerning
the water used to generate ice and service the aquaculture facility behind the property,
was corroborated by a lobsterman who testified that he takes 150-200 pounds of ice daily
from the property, and an oyster farmer who testified that he uses a substantial amount of
the water in his oyster facility behind the property. (May 12, 2009 Tr. at 44; May 26,
2009 Tr. at 56-57.)
While there might be some conflict between the testimony of Mr. Hanson and
Mrs. Licardi, it is the responsibility of the Zoning Board to weigh the evidence and the
credibility of witnesses. Restivo, 707 A.2d 663; § 45-24-69(d). Having weighed the
evidence and found that §§ 21-15(a)(3) and (a)(5) of the Ordinance were satisfied, the
Board made its findings. Those findings were supported by substantial evidence on the
record, and therefore, this Court upholds them. Mill Realty, 841 A.2d at 672.
The fourth requirement for granting a special use permit is that ―[t]he use will not
disrupt the neighborhood or the privacy of abutting landowners by excessive noise, light,
glare or air pollutants.‖ Ordinance § 21-15(a)(4). The issues of noise and air pollutants
have already been addressed herein. On the remaining issues of light and glare, the
Board found that these conditions were satisfied. (2009 Decision, Findings of Fact at
29
15). These findings were supported by the evidence in the record, because the proposal
did not seek to alter the exterior footprint or lighting scheme in any way. (May 26, 2009
Tr. at 77; 2009 Decision, Findings of Fact at 17.) They are therefore upheld.
The last requirement for granting a special use permit is that ―[t]he traffic
generated by the proposed use will not cause undue congestion or introduce a traffic
hazard to the circulation pattern of the area.‖ Ordinance § 21-15(a)(6). In its Decision
the Board found, ―[t]raffic will increase in the area due to the expanded take-out food
service, but it will not be a detriment to the area.‖ (2009 Decision, Findings of Fact at
16.) The only expert testimony evidence presented at the hearings on issue of traffic was
presented by Gardner‘s traffic expert, Mr. Bannon,20
who testified that ―taking into
consideration both the existing and projected traffic, … [the proposal] would not have a
detrimental effect on traffic in the area.‖ (May 26, 2009 Tr. at 33.) As has been
established supra, his testimony was based upon a review of the operation and traffic
counts conducted at the property, as well as Gardner‘s Warwick store. The results of his
studies were introduced into the record as Petitioner‘s Exhibit 8. This was the
uncontradicted expert testimony on this issue. It constitutes substantial evidence to
support the Board‘s finding that § 21-15(a)(6) of the Ordinance was met, and this Court
therefore upholds that finding.
20
While the Appellant and other members of the community expressed concern over the
potential increase in traffic, our high court has determined that such testimony has ―no
probative force‖. Salve Regina College v. Zoning Board of Review of City of Newport,
594 A.2d 878, 882 (R.I. 1991).
30
IV. CONCLUSION
This Court finds that the Board‘s Decision, granting Appellee‘s petition for a
special use permit and relief from five of the thirty-three (33) conditions contained within
the 1996 Decision, was in conformity with the doctrine of administrative finality, was not
affected by error of law, and was supported by substantial evidence on the record.
Substantial rights of the Appellants have not been prejudiced. Therefore, the Decision of
the Board is affirmed in its entirety.
Counsel for Gardners Wharf Holding, LLC shall submit an appropriate judgment
for entry, within ten (10) days of this Decision.